Justice O'Connor on Judicial Selection and Retention

Retired Justice Sandra Day O'Connor has this op-ed in the NYT. It is more balanced than her past efforts in the area, but I am not sure she yet appreciates how the "merit selection" cure can be worse than the disease.

Each state has its own method of choosing judges, from
lifetime
appointments to partisan elections. But judges with a lifetime
appointment are not accountable to voters. And elected judges are
susceptible to influence by political or ideological constituencies.

Okay,
good that she is recognizing the double-edged nature of the problem.

A
better system is one that strikes a balance between lifetime
appointment and partisan election by providing for the open, public
nomination and appointment of judges, followed in due course by a
standardized judicial performance evaluation and, finally, a yes/no vote
in which citizens either approve the judge or vote him out. This kind
of merit selection system -- now used in some form in two-thirds of
states -- protects the impartiality of the judiciary without sacrificing
accountability.

Yes, nomination followed by yes/no
retention votes, the system we have for appellate judges in California,
is better than either directly contested elections or life tenure. But
how exactly is the "nomination" part done?

In a merit selection system, a nonpartisan nominating commission
interviews and investigates applicants for judicial vacancies, and
ultimately recommends a few candidates to the governor. The governor
appoints one from the list. Regular "retention" elections are held to
allow voters to decide whether to keep the judge in office.

There are those who assert that this system benefits legal insiders,
because lawyers will inevitably dominate the nominating commissions,
which would hold their meetings in secret. But to the extent that this
could be a real problem, Arizona has already demonstrated how to avoid
it. In that state, nominating commissions are dominated by non-lawyers,
and their meetings are open. Candidates' applications are available
online, and the public is invited to comment.

"Could
be a real problem"? It is a huge problem. In most
states with so-called "merit" selection, the cure is worse than the
disease. Rather than removing politics from the system, it substitutes
bar politics for general politics, out of the frying pan and into the
molten lava.

Can the problem of nominating commissions be fixed,
as Justice O'Connor says Arizona has done? I'm not familiar with the
situation there. I would be interested hearing from anyone in a state
that actually has fixed the problem.

My own view is that
nomination by an unfettered executive, elected by and directly
responsible to the people, is the least bad of the available options.
That is, after all, how Justice O'Connor herself was selected. To be
sure, the system has produced some immensely bad choices as well, but I
am very skeptical of the claim that any commission is actually
better. Any thoughts, readers?